Post on 02-Dec-2021
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GENERAL JURISDICTION AND WAIVER IN A NEW ERA:
AMERICAN FIDELITY ASSURANCE CO. V. BANK OF NEW YORK MELLON
Alex A. Pedraza*
I. INTRODUCTION
Questions of jurisdiction are not the most contentious of issues, but
this has recently started to change as the importance and complexity of
establishing and clearly defining where an individual or corporation might
be subject to suit cannot be overstated.1 These concerns precede every
other step of the litigation cycle because questions of jurisdiction
determine whether it is constitutional to subject a particular potential
defendant to the courts of a particular domain.2 The Supreme Court has
repeatedly offered guidance on what this determination should hinge upon,
but there have been many ambiguities along the way.3 In American
Fidelity Assurance Co. v. Bank of New York Mellon,4 the Tenth Circuit
Court of Appeals had the opportunity to opine on a recent Supreme Court
ruling Daimler AG v. Bauman5 concerning certain jurisdictional bases for
* Juris Doctor Candidate, Oklahoma City University School of Law, 2018. Alex Pedraza
would like to thank his mother, Sherri Edge, and father, David Candy, for their love and
support.
1. See Russell J. Weintraub, A Map Out of the Personal Jurisdiction Labyrinth, 28
U.C. DAVIS L. REV. 531, 531 (1995) (discussing the growing complexities and importance
of personal jurisdiction).
2. See JACK H. FRIEDENTHAL, MARY KAY KANE & ARTHUR R. MILLER, CIVIL
PROCEDURE § 3.1, at 99 (4th ed. 2005) [hereinafter FRIEDENTHAL].
3. See Charles W. “Rocky” Rhodes & Cassandra Burke Robertson, Toward a New
Equilibrium in Personal Jurisdiction, 48 U.C. DAVIS L. REV. 207, 209–11 (2014)
(discussing the Supreme Court’s decisions’ nonobvious influence).
4. Am. Fid. Assurance Co. v. Bank of N.Y. Mellon, 810 F.3d 1234 (10th Cir. 2016).
5. 134 S. Ct. 746 (2014).
88 Oklahoma City University Law Review [Vol. 42
corporate defendants.6
This Comment begins with a historical account of how personal
jurisdiction has developed since the second half of the 20th century,
particularly the concept of general jurisdiction and its implications on
corporate defendants according to the Supreme Court. Next, this Comment
proceeds with a discussion of American Fidelity and how the Tenth Circuit
has attempted to rationalize the Supreme Court’s most recent ruling on
general jurisdiction regarding its retroactive effect on ongoing litigation.
This Comment concludes with an analysis of the recent development of
general jurisdiction and discusses the viability of allowing previously
waived presentments of a general jurisdiction defense in light of changing
constitutional authority.
II. HISTORY AND DEVELOPMENT OF GENERAL JURISDICTION
Traditionally, acquiring personal jurisdiction over a defendant was
limited.7 As Pennoyer v. Neff 8 illustrated in 1877, personal jurisdiction
can be established by simply serving a defendant who is physically present
in the jurisdiction or, alternatively, by entering suit in the forum of the
defendant’s domiciliary state,9 i.e., the state in which the defendant is
present with an intent to remain.10 Likewise, consent and voluntary
appearance were valid ways to obtain jurisdiction, just as they still are
today.11 However over the first half of the 20th century, the U.S.
infrastructure developed rapidly, resulting in people and businesses
becoming farther apart.12 Following this increasing geographic dispersion
of persons and entities across the country, the Supreme Court was forced
to establish a more flexible standard for determining when defendants
could be haled into the courts of different forums where they were neither
domiciled nor physically present .13
6. Am. Fid. Assurance Co., 810 F.3d at 1241.
7. See FRIEDENTHAL, supra note 2, § 3.17, at 168.
8. 95 U.S. 714 (1877).
9. FRIEDENTHAL, supra note 2, § 3.17, at 168.
10. See id. § 3.6, at 112–14.
11. Id. § 3.5, at 106.
12. See id. § 3.10 at 125–26; Logan Everett Sawyer III, Jurisdiction, Jurisprudence,
and Legal Change: Sociological Jurisprudence and the Road to International Shoe, 10
GEO. MASON L. REV. 59, 59–60 (2001).
13. FRIEDENTHAL, supra note 2, § 3.10, at 125–26; Sawyer, supra note 12, 59–60.
2017] General Jurisdiction and Waiver 89
A. New Era in Personal Jurisdiction
The Supreme Court fashioned just such a test in International Shoe
Co. v. Washington,14 a landmark case with extremely far-reaching
implications.15 In order to establish in personam jurisdiction outside of the
traditional bases of actual presence and domicile, a plaintiff bringing suit
in a particular forum must establish that the defendant has “minimum
contacts” with the forum.16 The minimum contacts inquiry is meant to
preserve the Due Process Clause of the Fourteenth Amendment in assuring
that no party shall be subject to “binding judgments of a forum with which
he has established no meaningful ‘contacts.’”17 Established minimum
contacts can obviate the potential to offend “traditional notions of fair play
and substantial justice,” and the jurisdictional basis for the suit is deemed
constitutional.18
The cornerstone of the minimum contacts analysis is whether
defendants purposefully availed themselves of the forum in question
through specific conduct or action, meaning that the defendants have
behaved in such a way that they have benefitted from the laws of that
particular state and therefore should answer to the state’s courts.19 A
defendant is allowed to challenge the validity of personal jurisdiction if
the defendant believes he lacks the requisite minimum contacts.20 If the
defendant can prove there are no minimum contacts, the case might be
dismissed pursuant to Federal Rule of Civil Procedure 12(b)(2).21 There
are several ways an individual or entity can avail itself of a forum, and the
14. 326 U.S. 310 (1945).
15. See Judy M. Cornett & Michael H. Hoffheimer, Good-Bye Significant Contacts:
General Personal Jurisdiction After Daimler AG v. Bauman, 76 OHIO ST. L.J. 101, 110–11
(2015) (discussing the role of International Shoe Co. entirely replacing old conceptions of
presence).
16. Int’l Shoe Co., 326 U.S. at 316 (“[D]ue process requires only that in order to subject
a defendant to a judgment in personam, if he be not present within the territory of the
forum, he have certain minimum contacts with it such that the maintenance of the suit does
not offend ‘traditional notions of fair play and substantial justice.’” (quoting Milliken v.
Meyer, 311 U.S. 457, 463 (1940))).
17. Burger King Corp. v. Rudzewicz, 471 U.S. 462, 471–72 (1984) (quoting Int’l Shoe
Co., 326 U.S. at 319).
18. Int’l Shoe Co., 326 U.S. at 316, 319–20 (quoting Milliken, 311 U.S. at 463).
19. See FRIEDENTHAL, supra note 2, § 3.11, at 135 (quoting Hanson v. Denckla, 357
U.S. 235, 253 (1958)).
20. See id. §§ 3.25–.26, at 195, 197.
21. FED. R. CIV. P. 12(b)(2).
90 Oklahoma City University Law Review [Vol. 42
degree to which the individual or entity has continuously engaged in a
particular conduct can produce ambiguities.22 However, more vexing is
the question of relatedness between a defendant’s actions in a forum and
the cause of action being brought in the forum.23
B. General Jurisdiction
International Shoe Co. established that certain behaviors qualifying as
availment must relate to the action being brought against the defendant.24
Nevertheless, this begs the question of how related is related enough.25 In
positing varying forms of activity and their relatedness to the suit in
question, one particular and important formulation mentioned by the Court
would later come to be understood as the precept for what is now referred
to as general jurisdiction26: “[T]here have been instances in which the
continuous corporate operations within a state were thought so substantial
and of such a nature as to justify suit against it on causes of action arising
from dealings entirely distinct from those activities.”27
In Perkins v. Benguet Consolidated Mining Co.,28 the Supreme Court
clarified when contacts were systematic and continuous enough to rise to
the level of general jurisdiction, despite the defendant mining company’s
status as a foreign corporation.29 The Philippine mining corporation had
conducted much of its wartime business activity in Ohio, including
maintaining the president’s office in the state and supervising the
corporation’s activities from that office.30 The Court determined these
contacts presented an instance where a defendant corporation was, for all
intents and purposes, using the forum as its home.31 The Court later
formally distinguished general jurisdiction from specific jurisdiction by
clarifying that only the latter jurisdictional basis requires that the suit arise
22. See FRIEDENTHAL, supra note 2, § 3.11, at 133–139.
23. See id. § 3.11, at 144–45.
24. See id. §§ 3.10–.11, at 126–27, 145 (quoting Int’l Shoe Co., 326 U.S. at 319).
25. See id. (quoting Int’l Shoe Co., 326 U.S. at 319).
26. See Int’l Shoe Co., 326 U.S. at 318.
27. Id. (emphasis added).
28. 342 U.S. 437 (1952).
29. Id. at 447–48 (detailing Benguet Consolidated Mining Company’s contacts with
Ohio).
30. Id.
31. Id.
2017] General Jurisdiction and Waiver 91
out of the contacts with the specific forum.32 In Helicopteros Nacionales
de Colombia, S.A. v. Hall,33 the Court reasoned that the Colombian
defendant corporation’s contacts with the State of Texas were not enough
to support a suit in Texas when the events giving rise to the suit occurred
in Peru.34 The corporation’s negotiations, purchases, and employee
training in Texas were not continuous and systematic enough to warrant a
determination of valid general jurisdiction.35 This outcome only slightly
limited what is considered continuous and systematic enough to warrant
general jurisdiction.36
C. Goodyear Onward
At the time American Fidelity commenced, Goodyear Dunlop Tires
Operations, S.A. v. Brown37 was the guiding Supreme Court precedent on
general jurisdiction.38 In Goodyear, the plaintiff brought suit in a North
Carolina court against defendant subsidiaries of the Ohio corporation
Goodyear USA: Goodyear Luxemburg, Turkey, and France.39 The suit in
question arose from a bus accident that occurred in France, the cause of
which the plaintiff attributed to Goodyear’s negligent manufacturing of
tires.40 The Court reasoned that although Goodyear USA was within the
jurisdiction of the North Carolina court, its European subsidiaries’
activities within the forum were not systematic and continuous enough to
give rise to general jurisdiction.41 Unlike in Perkins, the defendants’
principal places of business were not only outside the forum, they were
not even on the same continent—and neither were their places of
32. See Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414–16,
414 nn.8–9 (1984).
33. 466 U.S. 408.
34. Id. at 409–10, 415–16, 418.
35. See id. at 416–17 (summarizing Helicopteros’s limited contacts with Texas).
36. See Cornett & Hoffheimer, supra note 15, at 113 (“Helicopteros held that even
significant and regular purchases did not establish sufficient contacts for general
jurisdiction.”).
37. 564 U.S. 915 (2011).
38. See Am. Fid. Assurance Co. v. Bank of N.Y. Mellon, 810 F.3d 1234, 1235–36
(10th Cir. 2016).
39. Goodyear, 564 U.S. 915, 918, 920.
40. Id. at 918.
41. Id. at 929.
92 Oklahoma City University Law Review [Vol. 42
incorporation.42 Additionally, the Court hinted that the defendants’
contacts with the forum might not even suffice for specific jurisdiction, let
alone be considered systematic and continuous enough to constitute
general jurisdiction in North Carolina.43 Furthermore, the Court elaborated
that the defendant corporations’ actions must be not only continuous and
systematic but also so pervasive as to “render them essentially at home in
the forum State.”44
While the Court noted that a corporation’s principle place of business
and place of incorporation are the places where corporate defendants are
deemed at home, akin to an individual’s domicile, the Court also
acknowledged that certain behaviors can render the corporation
constructively “at home”, as was most aptly demonstrated by Perkins.45
Whatever these actions and behaviors might be, the Court concluded these
did not exist in Goodyear.46 As such, the Court reinforced earlier
established bases for general jurisdiction by maintaining a high threshold
of contacts and also promulgated the new at home standard.47 However,
“how extensive would the contacts need to be, in order to render the
corporation ‘essentially at home’” in a given forum?48
III. AMERICAN FIDELITY ASSURANCE CO. V. BANK OF NEW YORK
MELLON
A. Facts
American Fidelity challenged the Western District of Oklahoma’s
42. Id. at 920, 929.
43. See id. at 921 (detailing the defendants’ limited contacts with North Carolina).
44. Id. at 919.
45. Id. at 924 (citing Lea Brilmayer et al., A General Look at General Jurisdiction, 66
TEX. L. REV. 721, 782 (1988)); see also Cornett & Hoffheimer, supra note 15, at 124-25
(discussing Justice Ginsberg’s lack of acknowledgement that “contacts-based general
jurisdiction” could still occur post-Goodyear).
46. See Ariel G. Atlas, Who Says You Can’t Go “Home”? Retroactivity in a Post-
Daimler World, 101 CORNELL L. REV. 1597, 1604 (2016) (discussing Goodyear’s
determination that the petitioner was not at home based on insufficient contacts).
47. See Rhodes & Robertson, supra note 3, at 217–18 (quoting Goodyear, 564 U.S. at
919); Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414–17 (1984)
(holding Helicopteros’s contacts were insufficient to justify general jurisdiction).
48. Rhodes & Robertson, supra note 3, at 218 (quoting Goodyear, 564 U.S. at 919)
(discussing the question of just how extensive a corporation’s contacts need to be to render
it at home).
2017] General Jurisdiction and Waiver 93
ruling that the law regarding general jurisdiction remained unchanged after
the Supreme Court decided Daimler AG v. Bauman.49 The original dispute
arose out of an alleged breach of contractual and fiduciary duties by
trustee, Bank New York Mellon (BNYM), adversely impacting
beneficiary, American Fidelity.50 American Fidelity brought suit against
BNYM in Oklahoma.51 BNYM was “chartered under New York law and
its principle place of business [was] New York.”52 “Countrywide Financial
Corporation . . . sold mortgage-backed securities” to American Fidelity
and had previously appointed BNYM as the trustee over these securities.53
Specifically, American Fidelity held certificates in mortgage securitization
trusts which were later collateralized by sub-prime mortgages across the
United States.54 “The [specific] tranches of certificates purchased by
American Fidelity were all senior tranches, meaning that American
Fidelity had the right to receive distributions prior to the certificate holders
in the subordinated tranches . . . .”55 BNYM, as trustee, had the fiduciary
duty of reviewing the documentation underlying the collateralized
certificates.56 BNYM was also tasked with acting as the intermediary
between American Fidelity and the credit rating agencies with respect to
reporting any default.57 American Fidelity asserted that by failing to act on
its fiduciary duties as trustee, BNYM was responsible for the dramatic
devaluation of its certificates.58
B. Procedural History
“American Fidelity filed its initial Complaint on November 1,
2011.”59 The original complaint was dismissed pursuant to defendant
BNYM’s successful Federal Rule of Civil Procedure 12(b)(6) motion to
49. Am. Fid. Assurance Co. v. Bank of N.Y. Mellon, 810 F.3d 1234, 1235–36 (10th
Cir. 2016).
50. Id.
51. Id.
52. Id.
53. Id.
54. Brief of Appellee at 2, Am. Fid. Assur. Co. v. Bank of N.Y. Mellon, 810 F.3d 1234
(10th Cir. 2016) (No. 15-6009), 2015 WL 3544643, at *2.
55. Id.
56. Id. at 2–3.
57. Id. at 3.
58. Id.
59. Id. at 4.
94 Oklahoma City University Law Review [Vol. 42
dismiss for failure to state a claim filed in April 2012.60 American Fidelity
filed a second amended complaint to which BNYM again moved to
dismiss for failure to state a claim in May 2013; however, this motion was
denied.61 In both of these pre-answer motions to dismiss, defendant
BNYM did not raise any personal jurisdiction defenses.62 BNYM
eventually answered the complaint in January 2014 and for a third time
omitted a personal jurisdiction defense.63 A mere four days later, Daimler
AG v. Bauman was decided by the Supreme Court, prompting BNYM to
file a third motion to dismiss, this time asserting there was no basis for
general jurisdiction, citing to that case.64 In the same motion, BNYM, for
the first time, asserted that there was no basis for specific jurisdiction,
arguing BNYM did not have the requisite minimum contacts with
Oklahoma as a forum state; soon after, the parties stipulated jurisdictional
facts via jurisdictional discovery.65
The U.S. District Court for the Western District of Oklahoma denied
BNYM’s motion to dismiss, reasoning BNYM had “waived [its] general
jurisdiction defense under Federal Rule of Civil Procedure 12(h).”66 The
district court asserted that Daimler merely reiterated the standards for
establishing general jurisdiction already determined in Goodyear,
meaning that BNYM had the same opportunity to challenge general
jurisdiction before and after the Daimler decision.67 Likewise, the court
refused to address BNYM’s new arguments about specific jurisdiction
given that BNYM had failed to assert them in its prior two motions and
answer, and so they were waived.68
Bank of New York Mellon responded by seeking an interlocutory
appeal by the Tenth Circuit Court of Appeals.69 In its appeal, BNYM
asserted that its complaint could not have been dismissed for lack of
general personal jurisdiction prior to Daimler but that afterwards it could
60. Am. Fid. Assurance Co. v. Bank of N.Y. Mellon, 810 F.3d 1234, 1235 (10th Cir.
2016).
61. Id. at 1236.
62. Id.
63. Id.
64. Id.
65. Id.
66. Id.
67. Id.
68. Id.
69. Id.
2017] General Jurisdiction and Waiver 95
have raised such a defense, contending that the decision effectively
“narrowed the basis for general jurisdiction.”70
C. Opinion
After considering the plausibility of BNYM’s contentions, the Tenth
Circuit sided with the federal district court, agreeing that the general
jurisdiction defense was in fact available to BNYM from the outset of the
suit.71 The court reasoned that because Daimler merely solidified the
previous standard articulated in Goodyear, BNYM was able to assert the
defense prior to the decision; essentially, the court maintained that the
standard BNYM relied upon in asserting the defense was unaltered by
Daimler.72
The court preliminarily discussed the relevant procedural history and
developments regarding general jurisdiction doctrine at the Supreme Court
level;73 the previous discussion detailed International Shoe through
Goodyear.74 However, BNYM argued that there was Tenth Circuit
precedent for finding a want of general jurisdiction.75 Bank of New York
Mellon relied on two cases in particular:76 Grynberg v. Ivanhoe Energy,
Inc.77 and Monge v. RG Petro-Machinery (Group) Co.78 In Grynberg, the
defendant’s contacts were found to be insufficient for a finding of general
jurisdiction.79 The only other contacts the defendant had with the forum of
Colorado were being named a party to other actions brought in the forum.80
Monge saw a similar conclusion regarding a Chinese defendant
corporation whose only contacts with the Oklahoma forum were a small
portion of its sales in the state and a representative who had visited once
for a few hours.81 Both of the Tenth Circuit cases invoked the use of the at
70. Id. at 1237.
71. Id.
72. Id. at 1241.
73. Id. at 1237–39 (summarizing the U.S. Supreme Court’s general jurisdiction
holding).
74. See discussion supra Sections II.B to II.C.
75. See Am. Fid., 810 F.3d at 1239–41.
76. Id.
77. 490 F. App’x 86 (10th Cir. 2012).
78. Monge v. RG Petro–Mach. (Grp.) Co., 701 F.3d 598 (10th Cir. 2012).
79. Am. Fid., 810 F.3d at 1240; Grynberg, 490 F. App’x at 95–96.
80. Grynberg, 490 F. App’x at 95–96.
81. Am. Fid., 810 F.3d at 1240; Monge, 701 F.3d at 620.
96 Oklahoma City University Law Review [Vol. 42
home test articulated in Goodyear.82
While the cases are important precedents and might have helped
BNYM assert a general jurisdiction defense, the court maintained that
BNYM had simply missed the boat in its reliance on them.83 The court
reasoned it was irrelevant what precedent might have helped distinguish
BYNM’s case because it had already forfeited its right to raise such a
defense.84 Furthermore, both of these cases denied general jurisdiction
based on a Goodyear analysis.85 The court claimed that because Daimler
merely reaffirmed the previously existing standard for establishing general
jurisdiction, the opportunity to raise such a defense was the same as
before,86 meaning the defense was waived and could not be retroactively
asserted.87 The court further elaborated, “Grynberg and Monge both
applied Goodyear and are consistent with Daimler. Neither case
established Tenth Circuit precedent preventing BNYM from raising its
general jurisdiction defense because both employed the same standard that
the Supreme Court reaffirmed and applied in Daimler.”88
The court’s interpretation of Daimler emphasized that the decision did
nothing to rework the previous standard laid out by Goodyear.89 Daimler
expressly referenced Goodyear in its jurisdictional assessment and
particularly cited the importance of the principal place of business and
place of incorporation while simultaneously admitting that they are not the
sole determinants.90 Because of the Daimler Court’s reliance on the
previously articulated standard in Goodyear, the Tenth Circuit concluded
that BNYM’s waiver of its personal jurisdiction defense was valid and
affirmed the district court’s decision, denying BNYM’s motion to
dismiss.91
82. See Am. Fid., 810 F.3d at 1240 (analyzing the holdings of Grynberg and Monge).
83. See id. at 1241 (stating BNYM waived its general jurisdiction defense).
84. See id. at 1241–42 (“Neither [Grynberg nor Monge] established Tenth Circuit
precedent preventing BNYM from raising its general jurisdiction defense because both
employed the same standard that the Supreme Court reaffirmed and applied in Daimler.”).
85. Id. at 1241–42.
86. Id. at 1242.
87. Id.
88. Id.
89. See id. at 1241-42 (asserting “Daimler reaffirmed the Goodyear standard”).
90. Id. at 1240 (quoting Daimler AG v. Bauman, 134 S. Ct. 746, 761 (2014)).
91. Id. at 1241–43.
2017] General Jurisdiction and Waiver 97
IV. AN ANALYSIS
The troubling question the Tenth Circuit’s analysis never quite fully
addressed is what it means to be at home under the Goodyear standard.
While the Tenth Circuit was explicit in its assertion that Daimler only
restated Goodyear’s at home standard, it is still unclear whether this
previous standard—cemented eventually by Daimler—was a more
permissive standard when the action in American Fidelity commenced.92
It is undeniable that on its face BNYM waived its general jurisdiction
defense, but if Daimler did anything more than merely state word for word
what Goodyear asserted, there is a legitimate question of what effect
Daimler may have on present litigants relying on Goodyear.93
A. Daimler: A Brief Overview
In order to properly assess the Tenth Circuit’s application of Daimler
in American Fidelity, a brief overview of the facts and reasoning in
Daimler is necessary. Daimler, like Goodyear, dealt with a foreign
defendant, Daimler-Chrysler Aktiengesellschaft (Daimler), based in
Germany, whose subsidiary, Mercedes-Benz USA, was sued in a federal
district court in California.94 Mercedes-Benz Argentina, another Daimler
subsidiary, was alleged to have conspired with Argentinian security forces
to torture and kill its own employees who were family members of the
Argentinian plaintiffs during the 1970s and 1980s.95 Personal jurisdiction
over Daimler was contingent upon Mercedes-Benz USA’s contacts with
California.96 Mercedes-Benz USA had multiple California-based facilities
used to import and distribute Daimler-produced automobiles and was also
responsible for a substantial percentage of automobile sales in the state.97
Despite both its place of incorporation and principle place of business
92. See Brooke A. Weedon, Note, New Limits on General Personal Jurisdiction:
Examining the Retroactive Application of Daimler in Long-Pending Cases, 72 WASH. &
LEE L. REV. 1549, 1563–64 (2015) (discussing Goodyear’s lack of clear guidance resulting
in courts and litigants believing the test was more lenient than it was).
93. See id. at 1563, 1576, 1578–79 (“There should be relief from consent-based
jurisdiction when the consenting defendant did not have notice of an available
jurisdictional defense.”).
94. Daimler AG v. Bauman, 134 S. Ct. 746, 750–51 (2014).
95. Id. at 751.
96. Id.
97. Id. at 752.
98 Oklahoma City University Law Review [Vol. 42
being located on the East Coast, the Ninth Circuit affirmed that California
had general jurisdiction over Daimler, and the Supreme Court granted
certiorari.98
At the outset, the Court faced the question of whether the contacts of
an agent, Mercedes-Benz USA, can be imputed to its principal, Daimler,
for jurisdictional purposes.99 The Court quickly noted that the Ninth
Circuit’s “important” test was entirely too permissive.100 Under this
agency test, anytime there is a subsidiary-affiliate performing a function
important to the principal and that the principal cannot do itself, an agency
relationship exists.101 Regardless of the validity of this nearly all-
encompassing test, the Court dismissed its relevancy by concluding that
even if Mercedes-Benz USA’s contacts were “imputable to Daimler,”
Mercedes-Benz USA’s contacts with California were far too weak to
consider Daimler at home in the forum.102
The Court in Daimler unequivocally resolved the dispute brought
before it by the Ninth Circuit by merely reiterating and citing its own
precedent.103 The Court maintained that the plaintiffs had argued for an
overly embracing standard that would allow a proclamation of general
jurisdiction in nearly any forum where a defendant corporation had
substantial and continuous contacts, effectively undermining International
Shoe Co.104 However, the Court pointed out the plaintiffs had forgotten
that it is not enough to have systematic and continuous contacts with a
certain forum under Goodyear, even if those contacts are substantial and
attributable to multiple forums.105 The test is whether or not the defendant
can be rendered at home in a particular forum.106 The Court once again
stated that this theoretically could be something other than a place of
incorporation or principal place of business, but it would be rare and even
98. Id. at 752–53.
99. Id. at 758–59.
100. See id. at 759 (finding the Ninth Circuit’s test “stacks the deck” towards “a pro-
jurisdiction answer”).
101. Id. at 759–60.
102. Id. at 760.
103. See id. at 761–62 (finding Daimler was not at home in California according to prior
U.S. Supreme Court jurisdictional tests).
104. Id.
105. Id. at 761 (quoting Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S.
915, 919 (2011)).
106. Id. (quoting Goodyear, 564 U.S. at 919).
2017] General Jurisdiction and Waiver 99
more unlikely to exist in multiple forums.107
The Court maintained that in the current instance, there was nothing
particularly salient about Mercedes-Benz USA’s contacts with California,
relative either to other states in which it also engaged in commerce or to
other countries where Daimler engaged in commerce.108 The Court swiftly
concluded that if the plaintiff’s proposed test for general jurisdiction were
to stand, then Daimler would essentially be at home in many different
states, a proposition International Shoe Co. was never meant to
entertain.109 The Court likewise noted concerns of international comity,
explaining that the United States would have the broadest known test for
subjecting foreign defendants to suit, by allowing the suits of foreign
plaintiffs even when the underlying events occurred elsewhere.110 The
Supreme Court reasoned this sort of influence would not likely be received
well by the United States’s global counterparts.111
B. Daimler Changed Goodyear
While the Tenth Circuit adamantly repeated that Daimler added
nothing new to the Goodyear general jurisdiction standard for corporate
defendants, one scholar felt that in reality Daimler took a dramatic step by
effectively slamming the door shut on cases where a defendant doing
business would usually be enough to warrant a finding of general
jurisdiction.112 Until Daimler, a majority of courts were likely to find a
large, nationwide corporation that had substantial “continuous and
systematic” business contacts with a forum to be subject to general
107. See id. at 760–61, 761 n.19 (“We do not foreclose the possibility that in an
exceptional case a corporation’s operations in a forum other than its formal place of
incorporation or principal place of business may be so substantial and of such a nature as
to render the corporation at home in that State. But this case presents no occasion to explore
that question . . . .” (citation omitted)).
108. See id. at 761–62, 762 n.20 (“General jurisdiction . . . calls for an appraisal of a
corporation’s activities in their entirety, nationwide and worldwide.”).
109. Id.
110. See id. at 763.
111. Id.
112. See Tanya J. Monestier, Where Is Home Depot “At Home”?: Daimler v. Bauman
and the End of Doing Business Jurisdiction, 66 HASTINGS L.J. 233, 236 (2014) (discussing
Daimler as a radical departure from decades of case law in which corporations doing
substantial business in forums was considered to subject them to general jurisdiction).
100 Oklahoma City University Law Review [Vol. 42
jurisdiction in that forum.113 Some commentators even maintain that there
are few appellate decisions expressly dealing with questions of “contacts-
based general jurisdiction,” because it was already well established in
these jurisdictions that general jurisdiction over a defendant corporation
was not arduous to establish prior to Daimler.114 It follows that in many
instances where a defendant corporation had in fact been engaging in
business in a substantial and continuous manner in a particular forum,
general jurisdiction was rarely contested.115
Given that Goodyear dealt with facts that demonstrated when a
defendant corporation was very clearly not at home and provided little
other guidance on what being “at home” looked like, it was not at all
unforeseeable that many courts would interpret significant degrees of
business activity within a forum as rendering them “at home.”116
Considering these facts, it becomes significantly more understandable
why BNYM would not feel compelled to, or even be able to, assert a
general jurisdiction defense. BNYM was merely relying on the prevailing
practice in which many defendant corporations did not contest general
jurisdiction, because it was implicitly understood to exist where
corporations engaged in substantial business in the forum.117 Daimler, in
limiting general jurisdiction, effectively could have provided an avenue
for presenting a general jurisdiction defense previously thought to be
unavailable.118
113. See Rhodes & Robertson, supra note 3, at 214 (discussing nationwide corporations
nearly always were considered to possess “continuous and systematic contacts” qualifying
for general jurisdiction).
114. See Deborah J. Challener, More Uncertainty After Daimler AG v. Bauman: A
Response to Professors Cornett and Hoffheimer, 76 OHIO ST. L.J. FURTHERMORE 67, 75
(2015) (discussing the frequency of corporations assuming that they cannot challenge
general jurisdiction); Cornett & Hoffheimer, supra note 15, at 111 (discussing a lack of
appellate decisions dealing with the issue of whether corporations were subject to general
jurisdiction simply by doing business in the forum).
115. Cornett & Hoffheimer, supra note 15, at 111.
116. See Challener, supra note 114, at 75 (discussing Goodyear’s lack of guidance,
causing courts and commentators to reach different conclusions about how to apply the
standard).
117. See id. (“[T]here was no legal authority that made it futile for defendants to raise
their jurisdictional arguments until after Daimler was decided.”).
118. See Weedon, supra note 92, at 1563 (claiming Daimler created a new general
personal jurisdiction test).
2017] General Jurisdiction and Waiver 101
C. A Not-So-Bright Bright-Line
The Tenth Circuit would likely respond that this line of reasoning
misses the mark.119 The question of whether a district court would have
been persuaded by a general jurisdiction defense and the question of
whether a general jurisdiction defense was available are entirely
different.120 The Tenth Circuit insisted on a strict adherence to and
interpretation of Federal Rule of Civil Procedure 12.121 Under the Federal
Rules of Civil Procedure, a defendant is allowed a certain time frame to
raise an available personal jurisdiction defense, and when a defendant fails
to raise its defense within the allotted period, it is henceforth barred from
asserting the defense in future motions.122 However, the absoluteness of
Rule 12 is questionable.123 “[L]imited circuit case law in this area” points
to the conclusion that if the defense were not warranted by existing
precedent, then the defense must be considered functionally unavailable,
and an unavailable defense can not logically be subject to waiver under
Rule 12.124 It follows that when the defense does become available via a
change in the “controlling legal authority,” the newly available defense
should be able to be raised so long as it is raised timely.125 In American
Fidelity, BNYM raised its newly available general jurisdiction defense
two months after Daimler was decided.126 Because the defense was raised
so closely following the Daimler decision, a strong implication of veracity
arose when BNYM asserted it legitimately understood the defense to have
previously been unavailable.
The court might have agreed with the appellant’s contention that it
should be allowed to raise a general jurisdiction defense because the legal
standard under Daimler was colorably different than that under Goodyear;
119. See Am. Fid. Assurance Co. v. Bank of N.Y. Mellon, 810 F.3d 1234, 1241 (10th
Cir. 2016) (asserting the general jurisdiction defense was available when defendant filed
its answer, despite Daimler’s later ruling).
120. See id. (“BNYM waived its defense based on Daimler because the same defense
was available to BNYM when it filed its motions to dismiss and its answer.”).
121. See id.
122. FED. R. CIV. P. 12(a), (h)(1).
123. See Challener, supra note 114, at 74 (discussing the availability of a personal
jurisdiction defense as it relates to Rule 12).
124. Id.
125. Id. (discussing changes in controlling legal authority that actuate availability of a
defense).
126. See Am. Fid., 810 F.3d at 1236.
102 Oklahoma City University Law Review [Vol. 42
after all, if BNYM believed a general jurisdiction defense was not
available, it follows that it believed a specific jurisdiction defense was also
unavailable.127 While it may, at first glance, seem peculiar that BNYM
would forgo asserting a specific jurisdiction defense in the beginning of
litigation then later assert the defense post-Daimler, it is important to
remember that in everyday practice, general jurisdiction was usually
assumed to be valid where a corporate defendant’s role in a forum was
relatively expansive.128 If this is true, and Daimler narrowed the basis for
establishing general jurisdiction, then it is worthwhile to look at the
stipulated jurisdictional facts of both parties in American Fidelity.129 The
Tenth Circuit, “[h]aving concluded BNYM waived its defense as to
general jurisdiction,” never actually assessed the extent of the contacts in
its decision.130 The agreed-upon contacts include the following provisions:
a. BNYM has conducted corporate trust business or services
for clients that are located in the State of Oklahoma;
b. BNYM has conducted commercial indenture trust business
for clients that are located in the State of Oklahoma;
c. BNYM has provided investment services for trusts,
insurance companies, and/or banks that are located in the State
of Oklahoma;
d. BNYM has provided commercial broker-dealer services for
clients that are located in the State of Oklahoma;
e. BNYM has solicited business from municipal or state
governmental organizations that are located in the State of
Oklahoma; and
f. BNYM has provided investment services for municipal or
state governmental organizations that are located in the State
of Oklahoma.131
127. See Brief of Appellee, supra note 54, at 19 (“BNYM’s decision not to raise [a
specific or general jurisdiction defense] at the appropriate time mandates a finding of
waiver.”).
128. See Challener, supra note 114, at 75 (discussing well established general
jurisdiction law in the context of substantial corporate contacts with a forum).
129. See Weedon, supra note 92, at 1591 (discussing the narrowing effect Daimler had
on general jurisdiction).
130. Am. Fid., 810 F.3d at 1243 n.6.
131. Id. at 1236 (quoting Appellant’s Appendix at 51–52, Am. Fid., 810 F.3d 1234
2017] General Jurisdiction and Waiver 103
The extent of the various contacts and the many different roles BNYM
fulfills for its fiduciaries in Oklahoma would likely be deemed systematic,
continuous, and substantial under the pre-Daimler “doing business”
model.132 Given this fact, it would be very unlikely that BNYM would
have moved to dismiss for lack of specific personal jurisdiction if they in
fact believed they were likely already subject to general jurisdiction.133 If
Daimler limited the basis for establishing general jurisdiction such that
BNYM fell out of its scope, it only makes sense that BNYM would then
raise a specific jurisdiction defense, as this standard would now be the
basis by which personal jurisdiction would be established.
The Tenth Circuit in American Fidelity contended that BNYM’s
reliance on Grynberg and Monge was misplaced because the court rejected
the general jurisdiction argument in both decisions.134 However,
considering the relatively weak contacts presented in each case, it is
unlikely specific jurisdiction even existed, let alone general jurisdiction,
no matter which standard of general jurisdiction is being employed.135 The
Tenth Circuit misses the mark on these cases too because they are both
inapplicable in determining whether substantial, systematic corporate
actions in a forum would be interpreted as general jurisdiction under
Goodyear’s at home test.
D. Adjudicating Retroactivity
The Tenth Circuit, while acknowledging that Daimler affirms the
Goodyear standard, refused to recognize that the more specific
proclamation of Daimler should be considered a “constitutional
pronouncement”—a tightening of a pre-existing standard that provides an
objective basis that was not previously available.136 Daimler didn’t only
(No. 15–6009)).
132. See Monestier, supra note 112, at 240–41 (discussing corporations “doing business
in a forum with a degree of permanence and regularity” satisfying the substantial and
continuous standard for general jurisdiction).
133. See Appellant’s Reply Brief at 10, Am. Fid., 810 F.3d 1234 (No. 15-6009), 2015
WL 3883142, at *10.
134. See Am. Fid., 810 F.3d at 1241 (“The fundamental flaw in BNYM’s argument is
its failure to recognize that Grynberg and Monge denied general jurisdiction.”).
135. See id. at 1240 (stating that, in both Grynberg and Monge, the defendants’ contacts
with the forums were minimal).
136. See Weedon, supra note 92, at 1563–64, 1584 (discussing the district court’s failure
to understand Daimler as “constitut[ing] a new constitutional pronouncement”).
104 Oklahoma City University Law Review [Vol. 42
clarify and reiterate Goodyear, but it also gave a new level of guidance
which Goodyear lacked, as noted by many commentators.137 This means
that the Tenth Circuit incorrectly rested its argument on the supposition
that Daimler did nothing to change Goodyear.138 Additionally, other
circuits have also noted that a previous waiver may be excused where
raising a defense would not have gotten the defendant anywhere under
current precedent, so long as the litigation is still pending.139
Likewise, it is also worth considering that the Supreme Court has
previously held that when a new interpretation of a constitutional question
arises, the new interpretation, if altering a former rule, has the superior
effect on all cases still open to review, even retroactively.140 Daimler did
just that: It clarified a previously existing interpretation.141 There is no
reason why this holding should not also apply to the procedural function
of waiver and be accessible to defendant BNYM and others in ongoing,
open litigation.142 The Tenth Circuit concluded that this line of reasoning
holds no merit because BNYM had already consented to a waiver of its
general jurisdiction defense by not raising it.143 But many courts have
acknowledged the importance of placing limits on consent-based waivers,
recognizing the danger behind the ability to disable the issuance of a valid
defense because it simply was not there until later case law developed.144
If litigation is currently ongoing and the law changes to provide an
opportunity to raise a defense that was not available at the time of consent,
it simply follows that the defendant should be “relie[ved] from [the prior]
consent-based jurisdiction.”145
137. Id. at 1563-64 (discussing how Daimler provided its own distinct test after
Goodyear was criticized for being unclear).
138. See id. at 1586 (demonstrating that the court’s assumption that Daimler didn’t
change Goodyear is erroneous).
139. See id. at 1582 (explaining other circuits’ recognition that a defense waiver which
“would have been futile under binding precedent” is excused by the precedent’s changing
(quoting Bennett v. City of Holyoke, 362 F.3d 1, 7 (1st Cir. 2004))).
140. Id. at 1567 (stating U.S. Supreme Court precedence applies its interpretation of law
retroactively).
141. Id. at 1585 (stating that the district court claimed Daimler clarified Goodyear).
142. See id. at 1576 (discussing retroactivity generally).
143. Am. Fid. Assurance Co. v. Bank of N.Y. Mellon, 810 F.3d 1234, 1241 (10th Cir.
2016).
144. See Weedon, supra note 92, at 1579 (discussing importance of limits on consent-
based waivers).
145. Id. at 1580 (discussing the availability of a retroactively utilized defense after a
consent-based waiver of defense).
2017] General Jurisdiction and Waiver 105
V. CONCLUSION
The Tenth Circuit’s decision in American Fidelity Assurance Co. v.
Bank of New York Mellon employs an overly simplistic approach to
resolving the dispute before it. Daimler was more than a restatement of the
Goodyear standard for general jurisdiction; it clarified and narrowed what
“at home” meant for corporate defendants.146 In altering the currently
existing standard, Daimler directly impacted the constitutional precedent
regarding when a corporate defendant would be subject to general
jurisdiction, which in turn impacted many ongoing cases beyond those in
American Fidelity.147 The availability of a general jurisdiction defense for
many corporate defendants arose only after Daimler narrowed the basis
for general jurisdiction.148 Where a present litigant’s defense is directly
affected by constitutional decisions, retroactive effect should be applied in
order to preserve the litigant’s right to the defense.149
146. See Rhodes & Robertson, supra note 3, at 218 (asserting that Daimler specified
what qualifies as “at home” but Goodyear did not).
147. See Monestier, supra note 112, at 284 (summarizing Justice Sotomayor’s claim
that Daimler places restrictions on where litigants can bring suit); Weedon, supra note 92,
at 1565–66 (discussing the effect of changes in “procedural or remedial” legislation,
including due process, long-arm statutes, and their potential retroactive effect).
148. See Weedon, supra note 92, at 1586 (claiming that the waiver argument in
American Fidelity directly depended on a false notion that Daimler changed Goodyear).
149. See id. at 1572–73, 1582 (discussing the reinstatement of a defense when the
Supreme Court decision ruled the current personal jurisdiction law unconstitutional and
action is still pending).